Alternative Dispute Resolution & Family and Matrimonial Disputes
There is no doubt that family disputes are incredibly stressful and Court proceedings are equally traumatic, and also expensive, and often it is in the best interests of parties to avoid court if at all possible. The parties now adopted the Alternative Dispute Resolution to settle the family disputes in a speedy way through arbitration, mediation, negotiation or conciliation.
In villages, the dispute between two villagers used to be heard by ‘panch’ who used to resolve the dispute by mutual understanding. This concept has been developed over time and now it has a prominent place in the Indian legal system
Article 21 of the Constitution of India provides right to life and personal liberty. It says: “no person shall be deprived of his life or his personal liberty except according to procedure established by law.” The words “life and liberty” should not to be read narrowly.
The right to speedy trial has been held to be a part of right to life or personal liberty by the Supreme Court of India, in case of Hussainara Khatoon v. Home Secretary, State of Bihar, (1980) 1 SCC 81.
Provisions for ADR Under the Code of Civil Procedure, 1908
There are three substantive and procedural provisions contained in the Code of civil procedure which provide for settlement of disputes outside the court, which are as follows:
- Section 89 of the CPC: Settlement of disputes outside the Court.
- ORDER X of the CPC: Examination of Parties by the Court.
- ORDER XXXIIA of the CPC: Suits Relating to Matters Concerning the Family
Section 89 of the Code of Civil Procedure deals with Settlement of disputes outside the Court
Section 89 says:
(1) Where it appears to the court that there exist elements of a settlement which may be acceptable to the parties, the court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observation of the parties, the court may reformulate the terms of a possible settlement and refer the same for-
(c) Judicial settlement including settlement through LokAdalat; or
(2) Where a dispute had been referred-
(a) For arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 (26 of1996) shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act;
(b) to LokAdalat, the court shall refer the same to the LokAdalat in accordance with the provisions of subsection (1) of section 20 of the Legal Services Authority Act, 1987 (39 of 1987) and all other provisions of that Act shall apply in respect of the dispute so referred to the LokAdalat;
(c) for judicial settlement, the court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a LokAdalat and all the provisions of the Legal Services Authority Act,1987 (39 of 1987) shall apply as if the dispute were referred to a LokAdalat under the provisions of that Act;
(d) For mediation, the court shall affect a compromise between the parties and shall follow such procedure as may be prescribed.
A perusal of Section 89 CPC clearly spells out the statutory modes and procedure for alternative modes of dispute redressal in all matters of civil litigation in India. These substantive provisions are supported by Rules 1A, 1B and 1C of Order X of CPC as:
ORDER X of the Code of Civil Procedure, 1908: Examination of Parties by the Court.
Rules 1A, 1B and 1C were inserted in Order X by the CPC (Amendment) Act, 1999. This was consequential to the insertion of Section 89 (1) of Code of civil procedure, making it obligatory upon the courts to refer the dispute for settlement by way of arbitration, conciliation, judicial settlement including settlement through LokAdalat or mediation. Order X of the CPC along with Rules 1A, 1B and 1C read in the following terms:
Rule 1A– Direction of the Court to opt for any one mode of alternative dispute resolution.
After recording the admissions and denials, the Court shall direct the parties to the suit to opt either mode of the settlement outside the Court as specified in sub-section (1) of section 89. On the option of the parties, the Court shall fix the date of appearance before such forum or authority as may be opted by the parties.
Rule 1B– Appearance before the conciliatory forum or authority.
Where a suit is referred under rule 1 A, the parties shall appear before such forum or authority for conciliation of the suit.
Rule 1C– Appearance before the court consequent to the failure of efforts of conciliation
Where a suit is referred under rule 1A and the presiding officer of conciliation forum or authority is satisfied that it would not be proper in the interest of justice to proceed with the matter further, then, it shall refer the matter again to the Court and direct the parties to appear before the court on the date fixed by it.
According to Rule 1A, the parties to the suit are given an option for settlement of the dispute outside court. When the parties have exercised their option, the court shall fix the date of appearance before such forum or authority as may be opted by the parties for settlement.
According to Rule 1-B, the parties are required to appear before such forum or authority opted by them for conciliation of the suit.
Rule 1C provides for the presiding officer of the forum or authority to refer the matter again to the court in case it feels that in the interest of justice, the forum or authority should not proceed with the matter.
ORDER XXXIIA of the Code of Civil Procedure, 1908:
It should be noted that all proceedings under the Hindu Marriage Act and the Special Marriage Act in India are regulated by the provisions as contained in the CPC.
Order XXXIIA deals with Suits Relating to Matters Concerning the Family:
Rule 1- Application of the Order
(1) The provisions of this Order shall apply to suits or proceedings relating to matters concerning the family.
(2) In particular, and without prejudice to the generality of the provisions of sub-rule (1), the provisions of this Order shall apply to the following suits or proceedings concerning the family, namely:-
(a) a suit or proceeding for matrimonial relief, including a suit or proceeding for declaration as to the validity of a marriage or as to the matrimonial status of any person;
(b) a suit or proceeding for a declaration as to legitimacy of any person;
(c) a suit or proceeding in relation to the guardianship of the person or the custody of any minor or other member of the family, under a disability;
(d) a suit or proceeding for maintenance;
(e) a suit or proceeding as to the validity or effect of an adoption;
(f) a suit or proceeding, instituted by a member of the family relating to wills, intestacy and succession;
(g) a suit or proceeding relating to any other matter concerning the family in respect of which the parties are subject to their personal law.
(3) So much of this Order as relates to a matter provided for by a special law in respect of any suit or proceeding shall not apply to that suit or proceeding.
Rule 2- Proceedings to be held in camera
In every suit or proceeding to which this Order applies, the proceeding may be held in camera if the Court so desires and shall be so held if either party so desires.
Rule 3- Duty of Court to make efforts for settlement
(1) In every suit or proceeding to which this Order applies, an endeavour shall be made by the Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist the parties in arriving at a settlement in respect of the subject-matter of the suit.
(2) If, in any such suit or proceeding, at any stage it appears to the Court that there is a reasonable possibility of a settlement between the parties, the Court may adjourn the proceeding for such period as it thinks fit.
Rule 6- meaning of “Family”
For the purposes of this Order, each of the following shall be treated as constituting a family, namely:-
(a) (i) a man and his wife living together,
(ii) any child or children being issue of theirs; or of such man or such wife,
(iii) any child or children being maintained by such man and wife;
(b) a man not having a wife or not living together with his wife, any child or children, being issue of his, and any child or children being maintained by him;
(c) a woman not having a husband or not living together with her husband any child or children being issue of hers, and any child or children being maintained by her;
(d) a man or woman and his or her brother, sister, ancestor or lineal descendant living with him or her; and
(e) any combination of one or more of the groups specified in clause (a), clause (b), clause (c) or clause (d) of this rule.
Hence, in any suit or proceeding for matrimonial or other relief in matters concerning the family, there is a separate and independent statutory provision providing for mandatory settlement proceedings. This is over and above the other statutory provisions.
Lok Adalat System Under The Legal Services Authority Act, 1987
Preamble- The Legal Services Authorities Act, 1987, was enacted as “An Act to constitute legal services authorities to provide free and competent legal services to the weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities, and to organise Lok Adalats to secure the equal opportunity.”
Under Chapter VI of the Act, authorities may organise Lok Adalats at such intervals and places and for exercising such jurisdiction and for such areas as it thinks fit. Generally, the LokAdalat consists of serving or retired judicial officers and other persons of eminence, specified by the respective government in consultation with the judiciary. Over the passage of time, such Lok Adalats have become a popular mode for informal settlement of civil disputes of all nature. Written compromises, settlements and negotiated conclusions drawn up in Lok Adalats are returned to the court of competent jurisdiction for passing an appropriate judicial award, decision, decree or compromise as the case may be.
Lok Adalat means “People’s Court”. India had a long history of resolving disputes through the mediation of village elders. This is a system, where mock courts are held by the district authority, state authority, High Court Legal Services Committee, Supreme Court Legal Services Committee, periodically, for exercising such jurisdiction as they think fit. These are usually presided over by social activists, retired judges, or members of the legal profession. LokAdalats do not have jurisdiction on matters of non-compoundable offences.
There are no court fees and no rigid procedural requirements. It means there is no need to follow mandatory process laid down by the Civil Procedure Code or Evidence Act, which makes the process very fast. Parties can directly interact with the Lok Adalat judges in vernacular language, which feature is not possible in regular courts. Cases that are pending in regular courts can be transferred to a Lok Adalat if both the parties consent to it. A case can also be transferred to a Lok Adalat if one party applies to the court in writing where matter is pending. If the court sees some chance of settlement after giving the opportunity of being heard to the other party, the matter can be transferred to the Lok Adalat for settlement. The focus in Lok Adalats is on compromise and settlement. When no compromise is reached, the matter goes back to the regular court.
However, if a compromise is reached, an award is made by consent and it is binding on the parties. It is enforced as a decree of a civil court after it is affirmed as such by the regular court. An important aspect is that the award is final and cannot be appealed, not even under Article 226 of Constitution of India, because it is a judgement by consent and consent judgement is not appealable. All proceedings of a Lok Adalat are deemed to be a judicial proceedings and every LokAdalat is deemed to be a civil court under the Legal Services Authorites Act, 1987.
Settlement Under Indian Family Law Statutes
Reconciliation is mandatory under The Hindu Marriage Act, 1955 (HMA) and The Special Marriage Act, 1954 (SMA). However, other Indian matrimonial statutes do not provide for it and there is no statutory mandate to attempt settlement in other cases.
Reconciliation under Section 23(2) and section 23(3) of The Hindu Marriage Act,1955
Section 23 (2) of HMA provides that before proceeding to grant any relief under it, there shall be a duty of the court in the first instance, in every case to make every endeavour to bring about reconciliation between parties where relief is sought on most of the fault grounds for divorce specified in Section 13 HMA.
Section 23 (3) of HMA makes a provision empowering the court on the request of parties or if the court thinks it just and proper to adjourn the proceedings for a reasonable period not exceeding 15 days to bring about reconciliation.
It is very well established that a Hindu Marriage is a sacrament and not a contract. Even if divorce is sought by mutual consent, it is the duty of the court to attempt reconciliation in the first instance.
Section 34 of the Special Marriage Act, 1954. –
The provisions of Sections 34 (2) and 34 (3) of the SMA are similar to the provisions contained in Sections 23 (2) and 23 (3) of the HMA.
Other Measures under the Hindu Marriage Act, 1955
Section 14 of the HMA established a deterrent from initiating divorce proceedings in the first year of marriage. The logic behind that is to advocate settlement and reconciliation between parties and avoid hasty divorces.
Section 29 of the SMA contains similar provisions with similar bars.
Petition for Divorce by Mutual Consent. – Under Section 13B of HMA and Section 28 of SMA, divorce by mutual consent is discussed. However, it is not granted instantly and a joint motion made by both parties in the first instance has to wait for 6 months but not longer than 18 months to be confirmed for granting a divorce by mutual consent in the second motion.
Section 28 of SMA contains similar provisions with similar bars. The logic in these enactments is again to provide for reconciliation in a thinking period between the first and the second motion.
In Hitesh Narendra Doshi V/s. Jesal Hitesh Doshi, AIR 2000 (A.P) 362 , the minimum six month waiting period from the date of the presentation of the petition for severing the marital ties between the parties by mutual consent under section 13-B (2) of the Hindu Marriage Act was held to be mandatory and it was held that the Court has no power to relax the said compulsory time wait of six months and cannot pass a decree of divorce forthwith.
Matters to which reconciliation does not apply:
Petition on certain fault grounds.- When a petition for divorce under the Hindu Marriage Act, 1955 is presented on the ground of
- change of religion [clause (ii) of section 13 (1)],
- unsoundness of mind [clause (iii) of section 13 (1)],
- leprosy [clause (iv) of section 13 (1)],
- venereal disease[clause (v) of section 13 (1)],
- renunciation of world [clause (vi) of section 13 (1)],
- presumption of death [clause (vii) of section 13 (1)]
Reconciliation efforts need not be made, that is to say, the provisions of section 23 (2) do not apply.
The proviso in Section 23(2) HMA exempts the mandatory requirement of attempting reconciliation between the parties when divorce is sought on any of the grounds in HMA above.
Similarly, when a petition for divorce is made under Special Marriage Act, 1954 on the ground of-
- seven years sentence of imprisonment [clause (c) of section 27 (1)],
- unsoundness of mind [clause (e) of section 27 (1)],
- venereal disease [clause (f) of section 27 (1)],
- leprosy [clause (g) of section 27 (1)], or
- presumption of death [clause (h) of section 27 (1)],
no efforts at reconciliation need be made. The proviso in Section34(2) SMA exempts the mandatory requirement of attempting reconciliation between the parties when divorce is sought on any of the grounds in SMA stipulated above.
However, on all other grounds of divorce, both under HMA and SMA, the court has an obligation to make efforts at reconciliation. This mandatory and statutory duty of the court cannot be waived.
Family Courts Act, 1984
The Preamble to the Family Courts Act, 1984 states that it is “An Act to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of disputes relating to marriage and family affairs and for matters connected therewith.”
Family Courts Act adopted a friendly, conciliatory and informal dispute resolution atmosphere which would enable parties to amicably settled their differences without the shackles of the technical rules of the law of procedure and evidence.
The necessary provisions for reconciliations in the Family Courts Act, 1984 are dealt with under section 9 of the act which reads as:
Section 9- Duty of Family Court to make efforts for settlement:
(1) In every suit or proceeding, endeavour shall be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the suit or proceeding and for this purpose a Family Court may, subject to any rules made by the High Court, follow such procedure as it may deem fit.
2) If, in any suit or proceeding, at any stage, it appears to the Family Court that there is a reasonable possibility of a settlement between the parties, the Family Court may adjourn the proceedings for such period as it think fit to enable attempts to be made to effect such a settlement.
Analysis Of The Status Of ADR In Family Law
A novel question came up for decision before the High Court of Kerala in Bini v K.V.Sundaran AIR 2008 Kerala 84.- i.e., whether conciliation is mandatory after the introduction of the Family Courts Act, 1984, even on the excepted grounds of conversion to another religion, renunciation of the world, mental disorder, venereal diseases and leprosy. Calling the Family Courts Act, 1984 a special statute, and its provisions to make attempt at reconciliation mandatory at the first instance, the High Court held: The parties can disagree on matters of faith and still lead a happy marital life if they could be convinced that matters of faith should not stand in the way of union of hearts. Thus though under the Hindu Marriage Act, 1955, no endeavour for reconciliation need be made in a petition for divorce on the ground of conversion to another religion, or other grounds excepted under
Section 13 (1) of the Hindu Marriage Act, 1955 or on similar or other grounds available under any other law also, after the introduction of the Family Courts Act, 1984, the Family Court is bound to make an endeavour for reconciliation and settlement. The requirement is mandatory. The Court also observed that “the primary object is to promote and preserve the sacred union of parties to marriage. Only if the attempts for reconciliation are not fruitful, the further attempt on agreement on disagreement may be made by way of settlement.”
Hence, from the above judgment it is clear that the be holden duty cast upon the matrimonial courts to attempt mandatory reconciliation cannot be avoided and cannot be circumvented even when divorce is sought on certain exceptional grounds which under the HMA and SMA do not provide compulsory settlement action.
Still further, stressing the need to treat the cases pertaining to family matters in a humanitarian way, the Supreme Court of India in the case Baljinder Kaur V/s. Hardeep Singh AIR 1998 SC 764 laid down that “stress should always be on the preserving the institution of marriage. That is the requirement of law. One may refer to the objects and reasons which lead to setting up of Family Courts under the Family Courts Act, 1984. For the purpose of settlement of family disputes emphasis is “laid on conciliation and achieving socially desirable results” and eliminating adherence to rigid rules of procedure and evidence.”
The Supreme Court further held that “it is now obligatory on the part of the Family Court to endeavor, in the first instance to effect a reconciliation or settlement between the parties to a family dispute.” “Even where the Family Courts are not functioning, the objects and principles underlying the constitution of these courts can be kept in view by the Civil Courts trying matrimonial causes.”The Supreme Court held that the objectives and principles of section 23 of the Hindu Marriage Act, 1955 govern all courts trying matrimonial matters. Reconciliation is a mutual dialogue to bury their differences.
Litigation in respect of any matter concerning the family, whether divorce, alimony and maintenance or custody, trial of juvenile offenders or any other matrimonial cause should not be viewed in terms of failure or success of legal action but as a social curative problem.
It should not be viewed as a dispute in which parties and their counsels are engaged in winning or defeating, but as a societal problem needing resolution.
The amicable settlement of family conflict requires special procedures designed to help people in conflict and in trouble, to reconcile their differences, and where necessary to obtain professional assistance. Family disputes need to be seen with a hum
anitarian approach, therefore attempts should be made to reconcile the differences so as to not disrupt the family structure.
written by –
A student of faculty of law Delhi University, having interest in ADR and family laws.